Arrest, Search, and Questioning by Police, and Pretrial Detention

• Author: Nicholas Bala/Sanjeev Anand
• Pages: 214-326

214

CHAPTER 4

ARREST, SEARCH,

AND QUESTIONING

BY POLICE, AND

PRETRIAL DETENTION

A. THE CRITICAL NATUR E OF THE PRETRIAL

PROCESS

Chapters 4, 5, and 6 add ress the critical is sues that arise before a youth

who is involved in the justice system enters a plea a nd has a tri al. This

stage in the process can have a profound impact on the young person

and may effectively determine the outcome at later stages.

Chapter 4 deals with the initial contact of a youth wit h the po-

lice a nd t he justice s ystem, including issues related to police powers

of arrest, search, and questioning, and possible pretr ial detention of

the youth. This can be t he most traumatic pa rt of the youth justice ex-

perience for a young person, who m ay suddenly move from his or her

everyday life to questioning by strange adults, placement in a jail cel l,

and a stay in a detention facility. In this stage in the proces s, a youth is

most likely to be dealt with by police and judicial off‌icers who do not

specialize in youth matters, and there is perhaps the g reatest potential

for exploitation and abuse. While t he YCJA has resulted in substantial

declines in the use of youth courts and custody, pretri al detention rates

have changed little since the Act came into effect in 2003.1

Chapter 5 considers issues related to the diversion of cases by police

or Crown prosecutors from the formal youth just ice system through us e

1 Youth Criminal Justice Act, S.C. 2002, c. 1 (royal a ssent 19 February 2002, in

force 1 April 2003) [YCJA].

Arrest, S earch, and Questioning b y Police, and Pretr ial Detention 215

of extrajudicial measures. Diversion may result in a more ex peditious

resolution of a case by mean s that may engage the youth, community

members, and even victims, with no youth court record. Since the YCJA

same into effect, over half of all youth ca ses are resolved outside the

court system, generally the less serious c ases, e specially those involv-

ing f‌irst-time offenders.

Chapter 6 deals with the role of law yers in the youth justice pro-

cess, w ith a particular focus on the provisions of the YCJA that allow

for counsel to be appointed. A cr itical par t of the journey through t he

youth justice system often involves obtaining legal representation and

the advice of a law yer, though it often takes weeks or even months to

arrange. During this time the youth must live with considerable uncer-

tainty about what will happen.

B. COMMENCING THE YOUTH JUSTICE

PROCESS

Police may become involved in responding to the suspected cr iminal

behaviour of a young person in several ways. They m ay directly observe

the occurrence of what they believe to be an offence, for example, if they

see an assault happening on the street or if they stop the driver of a car

who appears to be impaired. More often, police become involved after

an alleged offence has occurred, in response to a report from a member

of the community, such as the v ictim, a witness, or some other pers on

who knows about the offence. The police will respond to a report of an

alleged crime initially by providing immediate assist ance to anyone in-

jured and by beginning an investigation. The nature and sophistication

of the investigation will depend on the seriousness of the offence.

In less ser ious cases, especial ly those involving f‌irst offenders, t he

police may decide to respond to a case outside the formal youth justice

court process, perhaps by informally discussi ng the situation w ith the

youth who is b elieved to have committed t he offence. The off‌icer may

issue a warning against the commission of further offences or may refer

the youth to a community-based program.

The police discretion not to formally charge and arrest is an im-

portant aspect of the justice system, particularly when young people

are concerned. The importance of the police discretion not to charge is

underlined in sect ions 3 and 4 of the Youth Criminal Justice Act, which

emphasize that police are empowered to employ extrajudicial measures,

for example, by cautioning youths or by referring them to a program of

extrajudicial sanctions. Diversion from the forma l youth justice court

YOUTH CRIM INAL JUSTICE LAW216

process through var ious form s of extrajudicial measure s is discussed

in more detail in Chapter 5.

The crimes young people comm it are usually less diff‌icult for po-

lice to solve than thos e per petrated by adults. Adole scents tend to be

less ca reful cr iminals than adults. Compared to adults, adolescent of-

fenders are less likely to take effective steps to hide their identity, and

they are more likely to inform f riends of their involvement in a cr ime.

Police investigations of cr imes often focus on interviewing the victim,

witnesses, and possible inform ants or co-perpetrators, although some

cases involve sophisticated forensic investigative techniques, including

f‌ingerprinting, DNA analysis,2 a nd such electronic surveillance tech-

niques as wiretapping.

If police have reasonable grounds to believe that a young person has

comm itted a c rimin al offen ce for whic h judici al sanc tion is a n appropr i-

ate response, they may commence a criminal proceeding. This may be

done by arresting the suspect or by issuing a document to that person

requiring his or her appearance in court on a specif‌ied date. Police may

use “reasonable force” for the purpose of arrest. If a youth is ar rested

and taken to the police station for questioning or detention, the youth

is usually subject to a search for weapons or evidence (e.g., drugs) and

handcuff‌ing for t ransport. Adults who are arrested generally do not re-

sist ar rest. Youths, who tend to be impulsive and lacking i n judgment

and experience, may be more likely th an adults to try to r un away or to

physically resi st arrest. A n off‌icer arrest ing a youth may need to pursue

and subdue the youth, with the possibil ity of injury to the youth.

A youth who is arrested or suspected of committing an offence will

usually be interviewed by police. Since many offences committed by

adolescents occur in groups, as a result of interviews with witnesses or

suspects, it is relat ively easy to establi sh that a particular youth was in

2 DNA analysis refers to the comparison of human tissue, such as blood, semen,

or hair sample s, left at a crime scene, with t he tissue of a suspected of fender. The

term “DNA,” short for deoxyrib onucleic acid, refers to the substa nce that forms

the basis of hum an cells and is dist inctive for almost every per son (except that

identical tw ins share the same DNA). Under s. 487.05(1) of the Criminal Code,

R.S.C. 1985, c. C-46, the police c an obtain a warrant f rom a provincial court judge

to take tis sue samples from a person sus pected of committing cer tain listed, ser-

ious offences. DNA sample s are derived by takin g a small amount of blood, hair,

or saliva (through a bucca l swab from the mouth — a quick, pai nless, non-invasive

procedure). Under ss. 487.07(4)–(5), if police are execut ing a DNA warrant on a

young person, the y must afford the youth special prote ctions for legal rights sim i-

lar to those that apply when a statement is being taken from a youth. The young

person must be af forded the right to consult wit h a parent and lawyer before t he

sample is take n, and to have that person pre sent while the sample is ta ken. The

youth may waive th is right in a written, aud io-, or videotaped waiver.